Alejandro Madrazo 4. From Revelation to Creation: The Origins of

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Alejandro Madrazo *
4. From Revelation to Creation: The Origins of Text and Doctrine in the
Civil Law Tradition
SUMMARY: 1. Introduction. 11. Revelation: The Advent of Legal Texts. 111.
Creation: The Ascent of Legal Doctrine. IV. Conclusions. V. Bibliography.
l. Introduction
For common law scholars, one of the most striking features of the civil law tradition IS the
prominent role played by legal doctrine and legal scholars.!
For civillaw practitioners, on the other hand, one ofthe most striking features ofthe common
law is the absence of legal texts at the core of its legal culture. This article aims at exploring the
origins of these two prominent features of the civil law tradition: the centrality of text and !he
authority of doctrine.
These two features of the civil law tradition are the legacy of two distinct conceptual models
of legal inquiry, which 1 call the model of revelation and the model of creation. largue that each of
these models has a distinct origin in separate but related practices of normative inquiry. The model
of revelation, concemed for the most part with authoritative texts, emerged from the practice
of late medieval jurists known as the glossators. The model of creation, concemed with
doctrines, comes from the late Scholastic moral theology of 16th century Spain. These two models
lie at the foundation of the civillaw tradition.
Exploring medieval jurisprudence can help us understand the origins of the roles of text and
doctrine in the civil law tradition. lt can also help us understand their relationship to each other. 1
propose that the differences between these two schools can be understood as a deep transformation
in the way the source of legal authority was understood. Underpinning these changes in the
understanding of law was a transformation of the metaphysical assumptions brought about by
developments in theology. The shift goes from a model in which divine authority is revealed in a
fixed text to one in which divine authority is found in creation, i.e. nature. Changes in law mirrored
• Professor of Legal Hislory and Comparative Law al the National Autonomous University of Mexico (UNAM). This
article reproduces substantive portions ofrny J.S.D. dissertation compleled al Yale University. I would like lo Ihank a11
ofthose involved, especia11y my advisor Paul W. Kahn
1 JOHN HENRY MERRYMAN, THE CIVIL LAW TRADlTlON (Slanford University Press, 1985) (2nd
ed.), chaplers IX and X.
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From Revetation to Creation: The Origins of Text and Doctrine in the Civil Law Tradition
a shift from the preeminence of the notion of revelation (paradigmatically present in the Bible as
divine law) to the preeminence ofthe idea of creation (i.e. nature).
Revelation and creation, glossators and Second Scholastics, text and doctrine are three pairs of
ideas that underlie the structure of this article. Accordingly, the article is divided into two main
sections: revelation and creation. The first section focuses on the work of the glossators and the
second section on the Second Scholastics. Throughout the discussion 1 will illuminate the roles
played by text and doctrine in the civillaw tradition. 1 will illustrate the two models by situating the
people who used them in specific historical and social contexts, and then analyzing their work in
further detail by exploring their methodological and metaphysical underpinnings.
1 believe this approach to the origins of the civillaw tradition will help understand not only
the cult of legal text and the authority of legal doctrine, but other important features of the
civil law, such as the tendency towards abstraction, the heavy reliance on definitions and
formal concepts and the strongly normative role played by a discipline that thinks of itself as
scientific and descriptive (i.e. legal science).
11. Revelation: the advent of legal texts
Ius commune is a vague term that usually refers to the common law ofCentral and Western
Europe from the late Middle Ages on. It was not the law of a particular political entity with a
determined jurisdiction. It was rather a cornmon learned legal culture. In the fractured legal
universe of late medieval Europe, the ius commune served as a meta-legal system that made it
possible to resolve conflicts between competing legal systems, establish common solutions for
common problems, and provide legal solutions to problems other laws or customs did not address.
The Ius commune pivoted on two authoritative collections of legal texts: the Corpus Iuris
Civilis and the Corpus Iuris Canonici. Late medieval jurists studied these texts using a common set
of assumptions and techniques, thus forming a common school. The Corpus Iuris Civilis was a
compilation of old Eastern Roman law that was revived in the West in the early centuries of the
second millennium. The other authoritative legal collection, the Corpus Iuris Canonici, was an
amalgamation of sacred texts and old laws of the Christian churches and the "new law" of the
recently consolidated Roman Catholic Church.
While each of these two legal collections was studied by a distinct academic discipline, the
disciplines were closely related. Civillaw studied the Corpus Iuris Civilis and canon law studied the
Corpus Iuris Canonici. The texts studied by canon law (and the doctrines of which it consisted)
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Alejandro Madraza
werc thc positive laws of a political and tcrritorial entity undcr the authority of thc Popcas prince2
The Corpus Iuris Civilis, on the other hand, was not the positive law of any existing polity. lt was a
leamed law shared by lawyers and bureaucrats in different polities throughout Europe. These two
disciplines shared methods, principies and assumptions:
The canonists shared with the Romanists o{ their day the same basic theories concerning
the nature and lunctions ollaw and the same basic method, 01 analysis and synthesis 01
opposites - theories and methods which were as much borrowed from them by the
Romanists as by themlrom the Romanists. Indeed, not only theories and methods but also
many specific legal concepts and institutions were taken over into contemporary Roman
legal science lorm the new science 01 canon law . .1
This interrelatedness included formal academic training4 A surge in academic work on
canon law at the tum of the first millennium was paralleled and intertwined with the rise of the
academic study of civil law. 80th fed an increasingly interrelated class of jurists that populated
Church and lay bureaucracies in the centuries to come. To be sure, this cross-fertilization between
legal disciplines included sharing sorne of the same legal texts, but most importantly it involved
common terminology, methodology, ideas and concepts.5
Noted Mexican legal historian, Guillermo F. Margadant, tells us that the period stretching
roughly over the first two centuries of the second millennium was dominated by the ideal of
reductio in unum: a single Church, under a single authority (the Pope's); a single Empire in which
all kings were to be vassals of the Emperor; a single language for culture, Latin; and, to complete
this scheme the idea of a single law, the ius commune, built by jurists out of the Corpus Iuris
Civilis and the canon law.6 Legal and political disputes were not about how to split the pie, but
rather about the pecking order; the pie was to remain whole, at least in theory. This idea of reductio
in unum is important in understanding the universalistic claims of jurists in their work, as will be
seen below.
2 Canon law was also not only the positive law of a territorial polity under papal jurisdietion, but was also the positive
law ofthe Westem Chureh, whieh meant it applied to the faithful throughout Europe in matlers !hat feIJ under Chureh
jurisdiction.
3 HAROLD J. BERMAN, LAW AND REVOLUTlON: THE FORMATlON OF THE WESTERN LEGAL
TRADlTION 204 (Harvard Universily Press, 1983). In faet, the example of the Seholastie methods of analysis and
synthesis as applied by the new legal seienee used by Berrnan in his book refers lO the monk Gratian who in 1140 wrote
a treatise on canon law mentioned below. See also BERMAN at 143-145.
4 JAMES A. BRUNDAGE, MEDlEV AL CANON LA W 52 (Longman, 1995).
5 Id. at 22.
6 GUILLERMO F. MARGADANT, LA SEGUNDA VIDA DEL DERECHO ROMANO 85 (Miguel Ángel Porrúa,
1986). E. N. Van Kleffens also mentions (he importanee of the idea of reductio ad unum, E. N . VAN KLEFFENS,
HISPANIC LAW UNTIL THE END OF THE MIDDLE AGES 173 (1968).
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From Revelation to Creation: The Origins of Text and Doctrine in the Civil Law Tradition
l. Emerging lnstitutions and Authoritative Texts
Two key processes contributed to the emergence of the ius commune in the first centuries of
the second millennium: the consolidation of the Church under papal authority with a unified legal
system (canon law), and the academic revival of Roman law in the universities. The emergence of a
centralized Roman Catholic Church under the Pope's authority was a process that spanned from the
10th to the 12th centuries. The university emerged at the end of the 11th century and would
successfully reproduce itself through-out Europe (and later America) effectively dominating
academic legal studies well into the 18th century. At the university, the formal study ofChurch law
and Roman law would spawn the twin legal sciences of canon law and civillaw.7
2. CanonLaw
In the late Middle Ages, the Western Church emerged as a centralized entity under the direct
tutelage of the bishop of Rome. The development of the Catholic Church's legal system, or canon
law, with identifiable sources of law and a determinate jurisdiction, is closely linked to this process
of reform and centralization, which Harold Berman has called the Papal Revolution (but which is
more commonly known as the Gregorian Reform).8
Early reformists wanted to advance the Church' s independence trom secular authorities.
Their strategy partly consisted of advancing their claims in legal terms. They pushed for both a
substantive revision of the laws governing the Church and an administrative reorganization that
would allow the adjudication of Church law in Church tribunals and the persecution of
Church criminals.9
Previously, authoritative Church documents bearing on law were characterized by
multiplicity and inconsistency. These included documents which were very distant in terms of time,
authorship and intent.1O Consequently, proto-canonicallawyers were concerned with reconciling the
discrepancies found among the texts. In compiling and interpreting them to better serve their
purposes, reformists initiated many of the methodological advances that the glossators would later
7 One must keep in mind that the distinctions between the legal systems aod the disciplioes that studied them were
blurred. So I will use the terms "caoon law" and "Church law" interchaogeably, as well as "Roman law" and "civil
law".
8 BERMAN, supra note 3 at 145. In the West, secular authorities' control over local
churches aod the corruption of ecclesiastical conduct had become the norm afler the break-up ofthe Carolingiao
empire aod the rise of "feudalism". See Brundage, supra note 4. In the 10th century, reactions agaiost the situation
began with the successful withdrawal of a few monastic houses from secular control, notably the Burgundian monastery
of Cluny (909). By the mid-eleventh century, reformers had gained the papacy under Leo IX, who gathered around him
other reformers who would later also be popes, notably Gregory VII.
9 See BRUNDAGE, supra note 4
10 They included conciliar canons (that ¡s, canons agreed upon at Councils, diverse universal or regional sununits of
high ranking clergy that had taken place throughout Christian history), Scripture, the writings ofthe Church Fathers and
other documents.
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Alejandro Madraza
build upon. From the time of Pope Gregory VII (11th century), collcctions of old conciliar
canons 11 became more frequen!. More importantly, the Pope claimed the power to create
new laws, called decretals (which together were known as jus novum, or new law as opposed to
jus antiquum or old law from the conciliar canons that were being compiled around the same
time)12
By the early 12th century, the Church had amassed a body of law sufficiently abundant that
Berrnan sees it as the prototype of a modern legal system.13 The Church had produced a large
number of legal precepts that governed matters under its jurisdiction.'4 It had also begun
developing interpretative techniques which allowed it to reconcile conflicting authoritative texts.
Eventually, the authoritative legal texts of the centralized Western Church would be compiled and
systematized through these interpretative techniques into a collection known as the Corpus Juris
Canonici.
3. RomanLaw
Together with canon law, the ius commune tradition of late medieval Europe grew out of the
study of Roman law. During the early Middle Ages, the importance of Roman la,,: had been
relatively minor. Academic inquiry was the key vehicle in moving Roman law from the
periphery to center stage of the Western European legal world. This academic revival of Roman
law was linked to a revision ofthe proper place oflaw in the general scheme ofknowledge.15 Peter
Stein tells us that the traditional view had been to locate law under the category of ethics insofar as
it deals with human behavior. The new perspective, arriving with the emergence of the glossators,
was to limit the ethical categorization of law to the conten! ofthe rules, yet to understand law as a
part of logic insofar as it consisted of interpreting words in a tex!. 16 This allowed for the
legitimate use of all the arts of traditional education known as trivium (grammar, dialectic and
rhetoric) in legal inquiry.
Throughout the 11th century, there was increasing interest in jurisprudence with the
emergence of several centers of specifically legal learning in Provenge, France, and in Lombard
cities of northern Italy. During this period Justinian's Digest (the part of the Corpus Juris
Civilis which compiled Roman legal doctrine) was studied in northern ltalyP These new centers
11 i.e. authoritative nonns or interpretations agreed upon by the different ecumenical councils, or bishop assemblies.
BERMAN, supra note 3 at 202.
12
13 Id at ehapter S.
14 i.e. Church finances and property, crime, labor, taxes, marriage, and family relationships, etc.
15 The question ofwhich social and political reasons stimulated the revival ofRoman law is complex and has no clear
answer. For aecounts ofthe historieal eontext, see BERMAN, supra note 3, STEIN, infra note 16 and MARGADANT,
supra note 6.
PETER STEIN, ROMAN LAW IN EUROPEAN HISTORY 46 (Cambridge University Press, 1999).
16
Its final part, including its fmal title, was not known at tirs!. STEIN, infra note 19 at 127.
17
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From Revelation to Creation: The Origins of Text and Doctrine in the Civil Law Tradition
of learuing gradually evolved into an autonomous corporation that carne to be known as the
University.18 Starting in Bologna, the stndy of law would be mostly devoted to Roman law as
presented in the Corpus Iuris Civilis. From there, its stndy and the corresponding methodology
would consolidate and, in the following centnries, spread throughout Europe through a growing
network of universities. The lawyers who spread from Bologna have come to be known as the
school ofthe glossators.
There are two key elements in understanding the work of the glossators and their importance
in the subsequent development of a systematic "science" of law. First, they took the Justinian texts
to be consistent, complete and coherent (as Justinian affirrned in the beginning of the compilation it
selt).19 Secondly, they built upon the tendency, already reflected in the last title ofthe Digest,20 to
21
abstract texts from their context and generalize their applications and implications. The glossators
took abstraction to a new level by applying it to the entire compilation and not just to the last title.
The glossators represent a key moment in the secularization of both academic knowledge
and legal stndies. However, their enterprise can best be understood in relation to the religious
22
context of their origin. Both aspects of the work of the glossators -a) the presupposition of
the completeness and consistency of the text; and b) the willingness to abstract and generalize any
par! of it- were linked to the religious underpinnings of their enterprise: the glossators approached
the Corpus Iuris Civilis in very much the same way a contemporary theologian would have
approached the Bible.
The idea that the authoritative collection of texts was complete was important, especially in
the case of civil law. In contrast to Ancient Rome, in late medieval Europe there was no
uncontested Imperial authority that could be the source of new Roman law. 23 Civil lawyers had
only the Corpus Iuris Civilis to work with. In the late medieval revival of Roman law, the Justinian
18 BERMAN, supra note 3 at 124.
19 "The glossators took it for granted that !he differen! texts eould be reeoneiled, for !hey aeeep!ed withou!
question Justinian's assurance that the Digest contained no contradictions which could not be resolved subtili animo
(Const. Tanta, 15)". PETER STEIN, REGULAE IURlS: FROM JURlSTIC RULES TO LEGAL MAXIMS l31-132
(Edinburgh University Press, 1966).
20 The Diges! was !he fourth and las! tex! of !he Corpus furis Civilis. It was a eompila!ion of opinions on specifie
mallers trom aulhorilalive Roman jurisls prior lo Juslinian's lime. The lasl litle of the Digest eonsisled of a lisl of
abstrael rules (regulae), separa!ed trom their speeifie topic, serving as sort of defaull solution in case a speeifie maller
was not addressed.
21 The Corpus furis itselfa produel ofthis tendeney.
22 Theodor Viehweg wams againsl assuming Ihal Seholastieism in Iheology was imported in ils enlirety into
jurisprudenee and eaulions againsl drawing paraUels belween jurisprudence and theology. THEODOR VIEHWEG,
TOPICS ANO LAW. A CONTRlBUTION TO BASIC RESEARCH IN LAW 54-55 (W. Cole Durham trans.) (Peler
Lang, 1993). In this article, Ihe poinl 1 wish make about the Iheologieal origins ofthe basic understanding oflaw and its
treatmen! of authority is nol in!ended lo contradict Viehweg. He is eoncemed with bringing lo light Ihe "widely
overlooked" influence oftopics injurisprudence, whereas 1 am concemed with bringing to light the persistent influence
of theology in law, a matler which, at leasl in Mexiean legal his!ory and jurisprudenee, has also been widely
overlooked.
23 Holy Roman Emperors claimed such authority a! differen! limes, though !he claim was never uoeontes!ed.
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text was assumed to be a complete and authoritative whole, free of contradictions and gaps. The
glossators accepted without question Justinian's assurance that the texts contained no
contradictions that could not be reconciled by one who tackled them with a subtle mind
(Constitutio Tanta,/5) and took for granted that the compilation as a whole contained everything
necessary to answer any conceivable legal problem.24
They also treated it as truth with transcendent authority:
Jt was of critical importance, however, that the jurists who studied these ancient texts
believed, as did their contemporaries general!y, that that earlier civilization, the Roman
Empire, had survived until their time, in the West as wel! as in the East. Jt had survived in
a special sense -in a new form, as the soul ofa person might survive the body. More than
that, they believed it had a universal and permanent quality. They took Justinian 's law not
primarilyas the law applicable in Byzantium in 534 A.D., but as the law applicable at al!
times and in al! places. They took it, in other words, as truth- the way they took the Bible
as truth and the work~ ofP lato and (later) Aristotle as truth25
What was in fact a multiplicity of texts with varying functions, different authors and historically
diverse sources, compiled centuries before under Imperial orders, was treated as a unified whole
valid for the present.
26
4. Jnterpreting Texts
The legal collections, then, were authoritative in a transcendental sense. Medieval jurists'
understanding of authority paralleled the understanding of authority of the other great discipline
concemed with authoritative texts: theology. Harold Berman links the emergence of a legal
science with the emergence of a science of theology, which sought to analyze evidence of divine
revelation systematically27 Knowledge and authority were both understood to come from divine
revelation. The Corpora28 played, for their respective disciplines, the role that the Bible played for
theology.
In fact, the texts of the Corpus Juris Civilis were anything but systematic. They were
arranged with " ... appalling lack of coherence ... The same matters were dealt with in the Institutes,
24 STEIN, supra nole 16 a146.
25 BERMAN, supra nole 3 al 122.
26 Id. atl27; JOHN P. DA WSON, THE ORACLES OF THE LA W 124 (The Universily of Michigan, 1968).
27 BERMAN, supra nole 3 al 132; DAWSON, supra nole 26 al 126 goes further Ihan Berrnan in linking Ihe Iwo
sciences and loca tes law at the receiving end of methodological bOITowings.
2M i.e. botb the Corpus ¡uris Canoniei and the Corpus luris Civilis.
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From Revelation to Creation: The Origins of Text and Doctrine in the Civil Law Tradition
Digest and Code, but without any order,,29 The decisions and extracts contained in them were
ofien very narrowly tied to concrete cases that had actually taken place; otherwise, they were, for
the most part, either imperial ordinances or else statements of how a magistrate (praetor)
would act on specific cases?O As John P. Dawson points out, the concem of Roman jurists had
been to find solutions, in the texts, to specific cases; a task in which "no elaborately reasoned
justification was needed, for to persons outside the elite group the jurist' s own authority was
enough and those inside would understand the reasons well enough,,?1
These assumptions and experiences did not correspond in time or place to the world in
which the glossators worked, making the original meaning of the texts simply incomprehensible -
or at best, useless- to them.
The glossators drew the tools with which to generate the meaning of the texts trom their
intellectual environment. It is common to link tbe school of the glossators to medieval
Scholasticism.32 Scholastic methods presumed tbat the mas s of propositions witb which one
worked were all true. At stake was their relation to one another, their systematization, not tbeir
validity.
This [the Scholastic} method, which wasfirstfoUy developed in the early 1100's, both in
law and in theology, presupposes the absolute authority 01 certain books, which are to be
comprehended as containing an integrated and complete body 01 doctrine; but
paradoxicaUy, it also presupposes that there may be both gaps and contradictions within
the text: and it sets as its main task the summation 01 the text, the closing 01 gaps within it,
and the resolution 01 contradictions. The method is caUed "dialectical" in the twelfth
century sense 01 that word, meaning that it seeks the reconciliation 01 opposites.
33
29 STEIN, supra nole 16 al 46.
30 BERMAN, supra nole 3 al 128. He uses " ... an example, 'The praelor says, 'If you or your slaves have forcibly
deprived anyone of property which he had al Ihal time, I will granl an aclion only for ayear, bul after Ihe year has
elapsed 1 will granl one wilh reference lo whal has [subsequenlly] come inlo hands of him who dispossessed Ihe
complainant by force'. Such propositions are then followed by quotations from opinions of various jurists".
31 DAWSON, supra nole 26 al 116.
32 MICHEL VILLEY, LA FORMATION DE LA PENSÉE JURIDIQUE MODERNE 104-108
(Edilions Monlcbresliene, 1975). Villey goes as far as considering Ihis period as la Revolution scolastique.
Scholaslicism was Ihe dominanl philosophical movemenl in Weslem Europe from Ihe 91h AD lo the 171h cenlury
AD, drawing from a tradition which combined religious dogma wilh patristic philosophy and laler, importantly,
Arisloleliao philosophy.
33 BERMAN, supra nole 3 al 131. The dialectical melhod for Ihe surnmalion oflhe Justinian lexl, Bermao explains,
had rools in Greek philosopby aod Roman jurisprudence, bul transformed Ihe methods of bolh tradilions lo a
considerable extent. Berman traces dialeelies from Greek philosophy starting wilh Plalo who equaled il wilh a melhod
lo arrive al lrulh, Ihat is, a science (the scienee in fael). In Plato's Ihought il eonsisted, basically, of refuting one's
opponents statements by exposing their own contradictions; drawing generalizations from true propositions about
particular cases; and defining concepts through distinclions arrived al Ihrough analysis of a genus into species and
synthesis of species inlo genus and genera inlo larger genera. Plato also believed that Ihe trulh was oblainable only
Ihrough deductive logic, nol induetive logic. Aristolle, on Ihe olher hand, dislinguished between dialectic reasoning and
apodictic reasoning. Apodictic reasoning started from propositions known to be true and arrived at certain truths;
dialectical reasoning, on Ihe other hand, slarted from problems or, al besl, debatable premises and arrived, again al
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Jurists, likc theologians, were concemed with making sense out of the texts without
questioning the authority of any par! of them. All texts were equally authoritative; they simply had
different scopes or spoke to different questions. If authoritative texts seemed conflicting or lacking,
it was assumed that this was because further understanding was needed, not because the texts
needed eorrection or addition.
In the proeess of solving eontradietions, medieval jurists inereasingly abstraeted speeifie
rules from their eontext, a tendeney already present in Roman legal texts. At the risk of
oversimplifying, the evolution of ancient Roman law can be depicted as one of inereasing
abstraction.34 The aetivity ofthe interpreter went from elaborating dejinitiones,35 whieh were
broad deseriptive statements of the law dealing with a eommon set of speeifie cases; to produeing
regulae,36 which were normative propositions (initiaIly elaborated by jurists but later
ineorporated into imperial legislation) designed to deal with several eommon cases. Medieval
jurists earried this tendeney towards abstraetion even further by using legal maxims in the sense of
selfevident, normative, abstraet propositions from which legal eonclusions eould be dedueed.
This inereased abstraetion in the work of the glossators requires an explanation of their use
of the closing title of the Digest (titIe 50.17). Justinian had included a list of 211 abstraet ('maxim
like', in the words ofStein) legal rules3? Aeeording to Stein, these rules, in their original eontexts,
were often regulae of the classieal period of Roman jurisprudenee (the first two and a half
best. at probabilities. Although both types of reasoning could use either inductive logic or deduc tive logic, dialectic
reasoning is better suited to use inductive logic whereas, in apodictic reasoning deductive logic is appropnate
depending on the kind of science. The Stoics, from whom Roman jurists would inherit the dialectic method, used
dialectics as a method for analyzing arguments and defining concepts by analysis and synthesis, separating dialectics
from logic and linking it with rhetoric and grammar. The Roman jurists, for their part, were the tirst to apply these
methods to legal texts (the Greeks didn't consider legal rules as valid starting points for reasoning) and used them
basically for classitications and for formulating rules implicit in decisions. Thuugh Berman speaks of a "subtle"
distinction in this last use between "definitions", which were more c10sely linked to the case, and "rules"
derived from cases but capable of being considered separately from the case, it seems that this distinction pales
in comparison with the extrapolation tuwards "maxims" that the medieval jurists would undertake. See BERMAN,
supra note 3 at 132-139
34 The tendency towards abstraction was coupled by a tendency to increased nonnativeness. By norrnativeness, 1 refer
to the normative character that legal commentaries of norrnative rules increasingly took. At first look, we would
expect a commentary on an authoritative text to describe what that text is saying. The authoritativeness of the text
implies that the interpreter will c1arifY the sense that the text already has. The text is nonnative, the commentary on the
text is not and so we should expect jt to limit itselfto describing a norrnative text. In Western legal science what we
see, 1 argue, is an increasingly nonnative character of the cornrnentary, rivaling to sorne extent the
authoritative text itself. Rather than describing the normative text, comrnentaries dictate or norrn what the text should
be understood to say. Under the pretense of describing the meaning of a text, cornmentators actually infuse it with new
sense. In short, norrnativeness here is to be lUlderstood by opposition to description.
35 STEIN, supra note 19 chapter 2.
36 For a detailed analysis uf the emergence of regulae in Roman jurisprudence, see STEIN, supra note 19, chapters lll,
lV&V.
37 The following lines are based on Stein's account of the Justinian compilation found in STE1N, supra note 19 at 118-
120
163
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From Revelation to Creation: The Origins of Text and Doctrine in the Civil Law Tradition
centuries A.D.):J8 broad statements which explained a senes of concrete juristic decisions in
the text preceding it. By removing the texts from the cases, the Digest compilers broadened the
scope of application of the fonnulations. Detached trom their context, the broad statements could
be applied to an indefinitely growing number of concrete cases. Those new cases might have
little to do with the original scope of the rule. An example helps illustrate this:
Occasionally the compilers were so keen to obtain a neat maxim of dramatic
simplicity, that they left it ambiguous, as in the case off r. 56, semper in dubiis benigniora
praeferenda sunt. To say that in doubtful matters the more benevolent interpretation
should be preferred raises the question, more benevolent to whom? Jt is only when it is
seen that the maxim is derived from a discussion of legacies, that it becomes clear that it
originally meant "more favorable to the legatee ,,39
This structure of the Corpus Juris as a mas s of specific legal texts sealed by a list of abstract
maxims was fundamental to the glossators. The glossators went much further toward abstraction
than the Roman jurists had by making generalizations of similar cases: they took the maxim-like
regulae "as legal 'maxims', that is, as independent principies ofuniversal validity".40 Furthennore,
they used other sections of the Justinian text, not originally stated as regulae, and took them out of
41
context so as to make them into maxims as wel1.
Whenever medieval jurists used regulae as maXlms, they were fundamentally usmg
solutions resulting from a problematic starting point as maxims from which to deduce necessary
conclusions. Aristotle held that dialectical reasoning was to be deployed when starting trom
problematic propositions and could arrive only at probabilities, not certainties; apodictic reasoning,
on the other hand, was premised on propositions known to be true and could therefore arrive at
conclusions that were certain.42 Medieval jurists claimed apodictic certainty for dialectical
arguments.
Today it would be problematic, to say the least, to claim the applicability of apodictic
reasoning to legal rules, for we would be pressed to accept legal rules as uncontested statements of
truth. But that is what medieval jurists did when extracting regulae trom their specific contexts
of the Corpus ¡uris and using them as universal maxims. The use of apodictic reasoning in law,
however, would not be controversial if legal rules are assumed to be divinely inspired
truths, which, 1 propose, is what enabled medieval jurists to deploy their analytic and synthetic
38 For details on the periods in which Roman legal history is divided see notes 35 and 36.
39 STEIN, supra note 19 at 119. The text "in doubtful mallers the more benevolent interpretations should be preferred"
would have dramatically different consequences in a different kind of case, say, in sentencing a criminal.
40 BERMAN, supra note 3 at 139.
STEIN, supra note 19at 131.
41
42 See supra text accompanying note 33
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